The other day, I saw the most talented, hardest working criminal defense lawyer I know on 60 Minutes. David Nevin of Boise, Idaho, represents the best of the American legal system by representing some of the worst of the human species. I got to know him pretty well a decade ago when he defended a Saudi graduate student accused of terrorism. If I ever got into serious trouble, I’d want Nevin on my side in court.
These days he’s representing the lead 9/11 defendant, Khalid Sheik Mohammed, before a military tribunal at Guantanamo Bay. Mohammed has admitted that he organized the attack on the World Trade Center, and he has also confessed that in 2002 he participated in the beheading of a friend of mine, the journalist Daniel Pearl.
Nevin, 63, may not be as famous as his sometime-co-counsel Gerry Spence or other celebrity lawyers. He is every bit their professional equal, however. His soft-spoken courtroom manner conceals a steely will to fight the government at every turn—not because he’s a dissident, exactly, but because he believes with a fundamentalist’s fervor in the adversary system.
He won an acquittal in the Ruby Ridge case of 1993, in which his client was accused of murdering a deputy U.S. marshal during a North Idaho standoff. In other cases, Nevin has defended neo-Nazis and a mother who helped her 14-year-old son buy a handgun he used to kill a policeman.
The 2004 trial I watched closely involved Sami al-Hussayen, a Saudi computer science doctoral student at the University of Idaho accused of providing technical assistance to Muslim charities that allegedly promoted violence and applauded attacks on the U.S. Persuaded by Nevin that al-Hussayen may have held offensive ideas but didn’t constitute an imminent threat, the jury rejected the government’s contention that the young man provided “material support” to terrorists. After studying all the evidence, I had to agree with the not-guilty verdict, even though I didn’t share Nevin’s admiration for his client, a visitor who used a lot of his time in this country aiding venomous extremists. (In the end, as I wrote in a book called American Islam, a certain measure of rough justice was done; the U.S. deported al-Hussayen because of immigration violations.)
Khalid Sheik Mohammed is different. I understand, in theory, why Nevin and his partner, Scott McKay, volunteered to take the case. They believe that the military’s version of a trial doesn’t meet constitutional muster. “This is not a system that is set up to deliver justice,” Nevin told CBS’s Lesley Stahl on 60 Minutes. He criticized government eavesdropping on his communication with his client. He deplored restrictions on evidence and the taint of torture that infects the entire Guantanamo process. Mohammed confessed, after all, when he was subjected to water-boarding and other extreme measures.
Stahl did a good job eliciting these views and still confronting Nevin. “This is a bad guy by his own confessions,” the correspondent said of Mohammed. “You’re saying he’s not the mastermind?”
“Here’s what I’m saying,” Nevin responded with characteristic calm. “I’m saying that in the United States we have a process, we follow it, we’ve always followed it, we apply it to everyone—except not now.”
I respect Nevin’s devotion to principle. I just don’t share it. Life is not an amalgamation of abstractions. Rules have exceptions. Not every prosecution has to set a precedent for all other prosecutions. A man capable of planning the destruction of 3,000 innocent people isn’t just another criminal deserving the procedural niceties offered even the most heartless street thug.
In the wake of 9/11, American officials had to find out what else Khalid Sheik Mohammed might have plotted. The ticking-bomb scenario was real. While jurors may reasonably discount his confessions in response to water-boarding—and as a practical matter, it may have been possible to obtain his admissions without such barbaric treatment—the question now is whether Mohammed devised the 9/11 attacks or not. Military prosecutors say they have quite a bit of evidence, including confessions that took place long after the torture. The jury should weigh the facts.
One of the facts that I can’t get out of my head is Danny Pearl’s brutal execution. With many criminals in the world who deserve some version of due process, Nevin did not have to put up his hand to defend the one accused of killing Pearl. As much as I admire his skill and perseverance, I can’t understand how Nevin took the assignment. There must be someone this fine lawyer would not represent, and I wish it had been Khalid Sheik Mohammed.